Waive

^ To abandon, relinquish, surrender: said of property, claims, privileges, rights.

Waiver.

A voluntary relinquishment of some right. 5 The intentional relinquishment of a known right.^ » A voluntary surrender and relinquishment of a right.'' Implies an election of the party to dispense with something of value, or to forego some advantage which he might at his option have demanded or insisted upon. 6 A renunciation of some rule which invalidates a contract, but which, having been introduced for the benefit of the contracting party, may be dispensed with at his pleasure. ' There must be both knowledge of the existence of the right and -an intention to relinquish it.* The waiver must be supported by an agreement founded upon a valuable consideration, or the act must be such as to estop the party from insisting on the performance of the contract or forfeiture of the condition. ^ Waiver is a voluntary relinquishment of some right which, but for such relinquishment, the party would continue to have enjoyed. Voluntary choice, and not mere negligence, is of the essence, though from negligence, unexplained, such election may be inferred. Waiver is a question of fact, to be determined from declarations and acts, or from forbearance to act.* See Knowledge, 1. also 04 Ga. 625; 7 Kan. 320; 71 Me. 164; 18 Johns. 128; 19 id.

UZ; 32 Tex. 533; 39 id. 363; 46 N. H. 531; 47 N. T. 124.

1 1 Bl. Com. 296; 2 Kent, 358. ^ O. E. waiven, to set aside, remove, refuse, giveover; F. loaiver. = Stewart v. Crosby, 50 Me. 134 (1863), Davis, J. " Hoxie V. Home Ins. Co., 32 Conn. 40 (1864), Butler, J.; Shaw v. Spencer, 100 Mass. 395 (1868), Foster, J.; 143 id.

374; State v. Churchill, 48 Ark. 445 (1886), cases. » Dawson v. Shillock, 39 Minn. 391 (1882), Dickinson, J.; 33 id. 117. "Warren v. Crane, 60 Mich. 801 (1883), Cooley, J.^ State Ins. Co. v. Todd, 83 Pa. 275 (1877); 12 Tex. *103. ' Hare, Contracts, 272.

8Eipley v. JStna Ins. Co., 30 N. T. 104 (1864); Montague V. Massey, 76 Va. 314 (1882). » [Fishback v. Van Dusen & Co., 33 Minn. 117 (1885), Mitchell, J. The question was whether a vendor had Waiver of a tort. Said of the act of a person who, by treating a matter as a contract, waives his right to pursue it as a tort with the peculiar remedies, penalties and consequences belonging to it in that character, i Thus, the owner of personalty may waive a tortious conversion of it.* If property be tortiously taken or converted, the tort-feasor may be sued in trespass or trover, or the injured party may waive the tort and sue in assujnpsit — as if there had been an implied contract. The defendant cannot set up his own wrbng-doing to defeat the action, and a judgment will bar an action ex delicto.^ A parly may waive any provision of a contract, statute, or constitution intended for his benefit.^ The doctrine of waiver is especially important in connection with covenants in lessees; as to these a waiver may be actual or express, and implied, as, in the last case, from taking rent after notice to quit for covenant broken. Where no principle of public policy is concerned, a party is at liberty to waive a statutable provision intended for his benefit.* A man may not barter away his life, freedom, or substantial rights. Thus, in a criminal case, it has been. held, he cannot consent to be tried without a jury, or by a jury of eleven men.' The public has an interest in his life and liberty. Neither can be lawfully taken except as prescribed by law. That which the law makes essential in proceedings involving the deprivation of either life or liberty cannot be dispensed with or affected by the consent of the accused.^ In a civil case he may consent to an arbitration, or decision by a single judge. He may waive removal into a Federal court, in each recurring case, but, not by an agreement in advance thus to forfeit a right on every occasion. And a party cannot waive jurisdiction. ^ See ABAKDbu; Acqciescehoe; Pbivilese, 1, Personal; Protest, 2; Void.